December 10, 2015 — The U.S. 9th Circuit Court of Appeals on Wednesday heard arguments to determine if two civil rights groups had the legal standing to challenge a law (HB 2442) banning abortion based on the sex or race of a fetus, the Arizona Republic reports (Beard Rau, Arizona Republic, 12/9).
Arizona and seven other states have adopted bans on the basis of sex, and Louisiana is also considering such a ban (Women's Health Policy Report, 5/19). According to the Republic, Arizona is the only state where abortions are banned on the basis of race (Arizona Republic, 12/9).
The 2011 Arizona law makes it a felony for anyone to knowingly perform or finance an abortion sought because of the fetus' sex or race. It also requires physicians to question abortion patients about their reasons for seeking the procedure and sign an affidavit swearing that the fetus' sex or race is not a factor. The affidavit is then included in a woman's medical records and can be accessed by the state medical board and prosecutors.
In May 2013, the American Civil Liberties Union of Arizona challenged the 2011 law on behalf of the National Association for the Advancement of Colored People's Maricopa County branch and National Asian Pacific American Women's Forum.
In the suit, ACLU of Arizona argued that the law is unconstitutional because it violates the 14th Amendment's equal protection clause. The suit said the law aims to reduce the number of black and Asian women who have abortions and is "based on racist and discriminatory stereotypes" about both groups.
In July 2013, Arizona Attorney General Tom Horne (R) asked a federal judge to dismiss the suit, saying it does not illegally discriminate but rather requires the identical treatment of all women. Horne also argued that the case should be dismissed because the plaintiffs had no legal standing to challenge the law. According to Horne, neither group had evidence that its members are harmed by the law or intend to undergo a race- or sex-based abortion.
U.S. District Judge David Campbell ruled in October 2013 that NAACP and NAPAWF did not have legal standing to pursue the lawsuit. The two civil rights organizations appealed that decision in March 2014 (Women's Health Policy Report, 3/14/14).
During the hearing Wednesday, ACLU attorney Alexa Kolbi-Molinas argued before a three-judge panel that the plaintiffs have standing to file a legal challenge against the law because they have been stigmatized by the legislation. According to Kolbi-Molinas, federal discrimination law recognizes stigmatization as a legitimate claim (Fischer, Arizona Capitol Times, 12/9).
According to court documents, the lawsuit states that the plaintiffs have been stigmatized by the law because it presumes that minority groups would seek out abortion care based on the sex or race of the fetus. They argue the law violates the 14th Amendment's Equal Protection Clause (Arizona Republic, 12/9).
Kolbi-Molinas cited language used in the law, as well as statements and studies referenced by the law's sponsor, state Rep. Steve Montenegro (R), that make claims about the relationship between abortion and the race or sex of the fetus. She said such statements show that lawmakers had discriminatory intent when they passed the law.
Judges Question Standing, Weighing Motivation
During the hearing, the judges questioned whether the motivations behind the law determine the law's constitutionality, as well as whether the plaintiffs had standing to sue. Judge Richard Clifton expressed concern about whether the court would be able to determine lawmakers' intentions in passing the law, noting that doing so would require the judges "to go into the heads of legislators who voted in favor of the law -- and not necessarily all the legislators."
Clifton added that the plaintiffs might have standing if they proved that lawmakers intended to enforce the law against specific women seeking abortion care. However, he said there is "no sign of that." According to the Arizona Capitol Times, there is no record that anyone had been denied an abortion or charged with a felony under the law.
Clifton said, "What there's a sign of is that some people have notions that we might describe as backwards or discriminatory, or having a perception that certain people might do things which we disfavor," adding, "I'm not sure that's an intent to discriminate."
Meanwhile, Judge William Smith suggested that other challenges to the law might have more grounds. For example, he noted that physicians could argue that the part of the law requiring them to sign an affidavit illegally intrudes on the patient-physician relationship. In addition, according to the Capitol Times, physicians prosecuted for performing an abortion in violation of the law or a woman denied an abortion under the law also would have standing for a lawsuit (Arizona Capitol Times, 12/9).
Kathy Nakagawa, founding member of NAPAWF's Arizona chapter, said conservative lawmakers have no evidence supporting the idea that Arizona women seek abortions based on a fetus' race or sex. "Laws based on false accusations that Asian-American women do not value women and girls have no place in Arizona," Nakagawa said, adding "This law exploits a false stereotype about Asian-American women to try to chip away at women's right to an abortion."
NAACP spokeswoman Dianne Post also condemned the law, saying, "We've seen this before: white men controlling the fertility of black women" (Arizona Republic, 12/9).